Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

VINCENT, J. This is a petition for a writ of mandamus against the city treasurer of the city of Cranston, asking that he be directed to pay to the petitioner the amount of an order, drawn by the school committee of that city upon him, for the balance of salary due to her as a school-teacher. The matter comes before this court upon the appeal of the respondent from the final judgment of the superior court granting the petition.

to independently exercise their power to grant new trials, and, with entire freedom from the rule which controls appellate tribunals, they ought to grant new trials when- Petition by Carolyn Hardy for writ of ever their superior and more comprehensive mandamus against William M. Lee, City judgment teaches them that the verdict of Treasurer. From a judgment issuing the the jury fails to administer substantial jus-writ, respondent appeals. Affirmed. tice to the parties in the case." In a number Frank H. Wildes, of Providence, for apof cases we have held, and it has become pellant. Richard W. Jennings, of Providence, the general rule governing the relation befor appellee. tween this court and the superior court in that regard, that, "when the verdict of a jury has been disapproved by the judge who presided at the trial, and a motion for a new trial has been granted by him on the ground that the verdict fails to administer substantial justice, such exercise of his power will not be disturbed by this court, unless it clearly appears that such conclusion of the trial judge is erroneous." Noland v. R. I. Co., 30 R. I. 246, 74 Atl. 914. After reading the entire transcript of testimony, and considering the elaborate briefs and arguments of counsel, we do not find such error. The testimony upon every essential question bearing upon the issue submitted to the jury was conflicting. The appearance of the witnesses upon the stand, and their manner in giving their testimony, is of much assistance in determining as to the weight of the evidence upon the various points in controversy. This advantage the presiding justice had, and we have not; his deliberate judgment has forced him to the conclusion that justice between the parties demands the submission of the cause to another jury. We cannot say that it clearly appears to us that this judgment was erroneous.

The petitioner alleges that she entered into a contract with the school committee to teach in the public schools of Cranston for the school year commencing September 11, 1911, and ending June 21, 1912, at a salary of $624; that she performed her duties as such teacher, and from time to time received from the treasurer sums of money, aggregating $438.70, on account of said salary; that on May 6, 1912, the school committee voted that the sum of $14 be paid to the petitioner on or before May 10, 1912, as a further payment on account of salary; that an order signed by the chairman of the school committee was drawn for that amount upon the treasurer; that William M. Lee was the duly elected and qualified treasurer of said Cranston, and was 'acting as such and discharg

The exception of the appellant is overruled. The case is remitted to the superior courting the duties of that office; that on said for a new trial.

(36 R. I. 302)

HARDY v. LEE, City Treasurer. (No. 202.) (Supreme Court of Rhode Island. May 1, 1914.) 1. SCHOOLS AND SCHOOL DISTRICTS (§ 135*)EMPLOYMENT OF TEACHERS COMPENSATION. Where a city charter provided that the council should fix the salaries of municipal employés, but that the expenditure of money appropriated for the maintenance of schools should be under the direction of the school committee, the school committee may hire teachers and fix their salaries; and a warrant drawn by the school committee in payment of an increased salary due a school teacher is valid.

[Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 130, 292-297; Dec. Dig. § 135.*]

2. MUNICIPAL CORPORATIONS (§ 904*)-IN

DEBTEDNESS-APPROPRIATIONS.

The fixing of a fiscal year for a municipality is purely a matter of convenience in handling its financial transactions, and cannot affect the municipality's liability on contracts; and hence teachers may collect salary warrants for services rendered in the past fiscal year out of an unexpended balance remaining for that year.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1889, 1890; Dec. Dig. § 904.*]

May 6, 1912, and since that date, he had funds in hand for the support and maintenance of public schools in said Cranston, and that such funds were sufficient to enable said treasurer to pay the order of the petitioner amounting to $14; that said treasurer, upon demand made for the payment of said order, refused to pay the same, alleging as a reason for such refusal that the said order was not an order from the city auditor, countersigned by the mayor, directing him to make such payment.

The respondent in his answer alleges that the order drawn by the school committee is

addressed to the city auditor and the city treasurer, and that the said order was not indorsed, approved, countersigned, ratified, or confirmed by the city auditor; that the city treasurer is subject to the provisions of the ordinances of the city, and cannot pay an order addressed to the city auditor until it has been ordered paid by said auditor or the city council, and that said city auditor had not ordered the order of the school committee paid, nor had the council commanded it; and that said order does not show out of

which appropriation it should be paid, nor | school committee is without power to engage for what period of service it covered. The teachers and specify their term of service, answer further alleges that the treasurer has but contends that the salary of such teachers paid said teacher all sums of money due her can only be fixed and determined by the city for the fiscal year, and that there were no council. We do not think that this position funds on May 6, 1912, available, to pay the of the respondent is tenable. It was evidentorder in question, in his hands, there having | ly the intention of the framers of the charter. been another order drawn upon him for the and of the Legislature in granting it, that sum of $518.22 for money due the Eastern the care, management, and control of the Coal Company, which reached him prior to public schools should be vested in the school the order in question, and which more than committee. It would be of little use to give covered the balance in his hands of funds ap- the school committee the power to engage propriated for schools for the fiscal year of teachers, unless it should be accompanied by 1911-12. It further alleges that the fiscal the power to fix their salaries. The school year began the third Monday in April, 1911, committee would not be likely to make much and ended on the third Monday of April, progress in obtaining suitable teachers with1912, and, finally, that the city council by out the ability to assure them in advance of resolution in accordance with the city char- a definite and satisfactory compensation for ter fixed the salaries of teachers, including their services. To assign the selection of the the petitioner, at $600 for the fiscal year end-teacher to one body and the fixing of the ing the third day of April, 1912, and that the salary to another would offer many opportupetitioner had received that salary in full;nities for friction and disagreement, which that the school committee claimed to have might defeat the practical and beneficial efraised this to $624 in the June following, and fect of the whole system. that the city council, on the third Monday of April, 1912, fixed the petitioner's salary at $624 for the ensuing year, and that she had received her proportional share up to the time of the bringing of this petition.

The respondent does not dispute the facts stated in the petition, except as to the existence of funds in the hands of the treasurer to pay the order in question, and upon this point testimony was offered by the petitioner | in the superior court.

The respondent in and by his brief and argument thereon claims (1) that the power to fix salaries resides in the city council, and not in the school committee; (2) that the school committee is restricted in its expenditures to the amount available for school purposes; (3) that the treasurer was without sufficient funds from which he could legally pay the order in question; (4) that it was beyond the power of the school committee to require the respondent, as treasurer, to pay out from the funds appropriated for one fiscal year for the services of a teacher rendered during the preceding fiscal year; (5) that such an order must be audited by the city auditor before payment can be required; and (6) that mandamus does not lie in the present case.

The charter of the city of Cranston was granted in 1910. At that time the school committee of the town of Cranston was discharging its duties and conducting its business under and by virtue of the authority of the General Laws of 1909. An examination of these laws, and especially of section 11 of chapter 66 and section 9 of chapter 67, shows that the school committee was practically transferred, through the grant of the charter, from the town to the city without any material change of powers or duties. Under these statutes, the entire care, control, and management of all the public school interests was vested in the school committee of the several towns, and they were authorized to draw all orders for the payment of their expenses. We think that the order for $14, drawn by the school committee in favor of the petitioner, was a good and valid order.

The respondent claims that the petitioner was not entitled to the sum of $14, because she had been actually paid for all the services which she had rendered to the city up to the time that the order for that amount was given to her by the school committee. It appears that the school committee in June, 1911, raised the teachers' salaries from $600 to $624, and the claim of the respondent that the petitioner had been fully paid rests upon the contention that the school committee having no power to fix salaries, had no pow er to raise them, which presents the same question which we have already considered. [2] At the hearing in the superior court the petitioner called the respondent as a witness for the purpose of showing that the latter, at the time when the demand was made upon him to pay the order for $14, had sufficient funds from which he might have paid the same, and he testified as follows: "5 Q. On May 6, 1912, will you state what funds were

[1] The charter of the city of Cranston provides that the city council "shall fix the salaries of its employés except as herein provided." The proviso in said charter, which is applicable to the present case, is in these words: "Provided, however, that the expenditures and money appropriated for the support and maintenance, improvement, and keeping in repair of the school property shall be by and under the direction of the school committee of said city, which said committee shall annually make a detailed report in writing to said council of all receipts and expenditures made by it."

The respondent's appeal is dismissed, the judgment of the superior court is affirmed, and the case is remanded to said court for further proceedings.

(111 Me. 525)

LEIGHTON v. NASH. (Supreme Judicial Court of Maine. April 28, 1914.)

school committee? A. I will say in reply ther contention that the treasurer had no to that question that on that date the funds, authority to pay such order from the approor, at least, the appropriation and the credits priation for the fiscal year beginning April against which school orders might be charg- 15, 1912, becomes immaterial to the present ed, were divided into two classes, those for case and need not be discussed. the fiscal year ending April 15, 1912, and those for the fiscal year commencing April 15, 1912. I will say that in the first class, on May 6th, for the fiscal year ending April 15, 1912, there was an apparent balance of $458.26. If I am allowed to explain the word 'apparent balance.' 6 Q. Go ahead. A. I will say that an order was presented to me from the city auditor, signed by the mayor, previous to that date, for $518.22. This order, as it was in excess of the balance on hand at that time, was returned by me to the city auditor with the remark, 'Not sufficient funds to pay the order.' With that exception, I will say the apparent balance on May 6, 1912, of the appropriation and credits for the fiscal year ending April 15, 1912, was $458.26. 7 Q. Well, now, were there other funds at that time available? A. On May 6, 1912, of the appropriations and credits available for the payment of school orders for the fiscal year commencing April 15, 1912, there were unexpended $79,355.88."

From this testimony of the respondent it appears that he had in hand the sum of $458.26 from the appropriation for schools for the fiscal year ending April 15, 1912, and for the fiscal year beginning April 15, 1912, the sum of $79,355.88. The respondent, however, contends that he has no authority to pay a teacher's salary from the balance of the appropriation for the fiscal year ending April 15, 1912, after the expiration of that year, without a special appropriation and order of the city council, and that he has no authority to pay such salary, covering services rendered during the fiscal year ending April 15, 1912, from the appropriation for the fiscal year commencing April 15, 1912. The fixing of the fiscal year is purely a matter of convenience in the handling of the financial and business transactions of the city, and exerts no force or influence upon a contract made with a teacher for her services. The school committee had authority to engage teachers, fix their compensation, and determine their term of service. The obligation thus arising to the city to pay the salaries of teachers is not released or varied by the fixing of the fiscal year, nor does the right to collect the salary covered by the order expire with the close of the fiscal year. It is a contract which the city has entered into through its properly authorized committee, and as such it must be recognized and carried out.

It appearing from the testimony of the treasurer that there was a sufficient amount remaining in his hands, from the appropriation for the fiscal year ending April 15, 1912, to pay the order of the petitioner, the fur

1. EXECUTORS AND ADMINISTRATORS (§ 221*)— CLAIMS-SERVICES BY MEMBER OF FAMILYEVIDENCE-BURDEN OF PROOF.

In an action by a daughter against the estate of her stepfather for services rendered in caring for the stepfather and his wife, the daughter's mother, it was incumbent upon plaintiff to prove that the services were rendered in pursuance of a mutual understanding that she was to receive payment and that the daughter expected payment.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 901-9032, 1858, 1861-1863, 1865, 1866, 1871-1874, 1876; Dec. Dig. § 221.*]

2. EXECUTORS AND ADMINISTRATORS (§ 221*)— CLAIMS-SUFFICIENCY OF EVIDENCE-SERVICES BY MEMBER OF FAMILY.

In an action by a daughter against the estate of her stepfather to recover under an implied contract for services rendered to the stepfather and his wife, plaintiff's mother, during their lives, evidence held not to support a finding that plaintiff expected pay for her services.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 901-9032, 1858, 1861-1863, 1865, 1866, 1871-1874, 1876; Dec. Dig. § 221.*]

Spear, J., dissenting.

On Motion from Supreme Judicial Court, Cumberland County, at Law.

Action by Flora E. Leighton against Fannie P. Nash, executrix. On motion for new trial by defendant. Sustained, and verdict set

aside.

Argued before SAVAGE, C. J., and SPEAR,
and PHIL-
KING, HALEY, HANSON,
BROOK, JJ.

Foster & Foster, of Portland, William Lyons, of Westbrook, and John B. Thomes, of Portland, for plaintiff. Merrill & Merrill, of Skowhegan, for defendant.

SAVAGE, C. J. The plaintiff brings this action against the estate of her stepfather, William H. Pearson, to recover for services rendered and cash paid in his lifetime, and alleged to have been at his request. There are some small items for services rendered to Mr. Pearson personally, both before and after the death of Mrs. Pearson, the plaintiff's mother. But the main item, and the one to which attention must be particularly directed, is for "work and labor caring for Mr. Pearson and wife, and for labor per

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexe

formed at Mr. Pearson's request in general work and general care and nursing Mr. and Mrs. Pearson when they were sick, and also in taking care of their hired girl, Hannah Johnson, during her sickness, all at the request of Mr. Pearson, from October 10, 1904, to October 10, 1910, $600."

It appears that more than 20 years ago Mr. Pearson built a two-tenement house; and from the time it was built until the death of Mrs. Pearson in 1910, Mr. and Mrs. Pearson occupied the downstairs tenement, and the plaintiff and her husband the upper one, the husband regularly paying rent each month.

It is not disputed that during the period covered by the item in question the plaintiff performed many valuable services in caring for and nursing her mother, and perhaps rendered some service to Mr. Pearson personally. The controversy, however, hinges chiefly on the service to the mother. And the question at issue is whether the service was gratuitous, or rendered under an implied contract. Express contract there was none.

will in which he gave the plaintiff $500 in case she survived her mother. That will was in existence at the time of these conversations, and after his death was probated. The foregoing statement embraces all of the essential facts. The jury found for the plaintiff, and the case comes up on the defendant's motion for a new trial.

[1] There having been no express agreement to pay, it was incumbent on the plaintiff to prove that the services were rendered by the plaintiff, either in pursuance of a mutual understanding between the parties that she was to receive payment, or in the expectation and belief that she was to receive payment and that the circumstances of the case and the conduct of the defendant justified such expectation and belief. Saunders v. Saunders, 90 Me. 284, 38 Atl. 172. It is not enough to show that valuable service was rendered. It must be shown, also, that the plaintiff expected to receive compensation, and that the defendant's intestate so understood, by reason of a mutual understanding or otherwise, or that under the circumstances he ought so to have understood. ositions are essential, and must be proved. This is the law of implied contracts. Whether the plaintiff expected compensation, and whether the defendant's intestate so understood, or ought so to have understood, are questions of fact, and must be determined in a case like this, where there is no testimony from either of the parties, by a consideration of the circumstances, of their relations to each other, of their respective conduct, and of the probabilities.

Both prop

[2] We think the case is barren of evidence to warrant the inference that, when the plaintiff rendered these loving and filial services to her mother, she expected to be paid for it; that she was doing the services for pay; that she was thereby making Mr. Pearson her debtor. It may very well be believed that she hoped that her stepfather would

In 1904, Mr. and Mrs. Pearson were each about 70 years of age. Mrs. Pearson was then feeble and continued to grow feebler, though she continued to labor more or less up to the time of her last illness, a few days before her death. But she had a "heart trouble" and a "nervous trouble," and perhaps other complications. She frequently had "sick spells," when care and nursing were necessary. At such times no outside nurse was employed, but when necessary the plaintiff came down from her tenement upstairs and cared for and nursed her mother, rubbed and bathed her, gave her medicine and food, and in every needful way ministered to her. At times when her services were needed, Mr. Pearson sometimes would call to her from the foot of the stairs, and sometimes would attract her attention by rapping on the connecting pipes. It also appears that there were times when the plain-recognize her service in some way, as by tiff brought down cooked food for Mr. and Mrs. Pearson, and performed some housewifely service about the house, like cleaning, sweeping, dusting and cooking. This, we assume, was when her mother was temporarily incapacitated. The two families seem to have maintained the most amicable relations. further appears that during her last illness, in the last week of her life, Mrs. Pearson, at two different times, asked her husband to "give" or "leave" the house where they lived to "Flora," the plaintiff, and that he replied "I will do what is right." One witness, after giving the statement in that form, was recalled later in the trial, and testified that at one of the times he replied, "I will do as you want me to." The case does not show that the plaintiff had any knowledge of these conversations until after her mother's death. Three years before Mr. Pearson had made a

It

legacy, which, indeed, he did. But that she regarded him as her debtor is wholly improbable under the evidence. To say so would be mere guesswork. The probabilities are all the other way. And there is no evidence which warrants the inference that Mr. Pearson understood, or ought to have understood, that he was becoming indebted to the plaintiff every time he called the plaintiff downstairs to minister to her mother. Not once during the six years is it shown that there was any conversation between the parties indicating that either of them understood that the service was rendered on a commercial basis. The subject is not shown ever to have been referred to by either. And during all the time the plaintiff's husband was regularly paying rent for the tenement they occupied, month after month. If the plaintiff then expected to be paid for her service, it